American Legal History and the Hessian Effect

hessianIt is curious thing that, even as undergraduate liberal arts programs continue to take a beating, law schools designed to train professionals now offer more humanistic (sometimes called perspective) courses than ever. What may be even more curious is that the presence of these courses in the curriculum is justified on instrumental grounds. Courses in jurisprudence, legal history, and comparative law (as well as others taking their cue from the social sciences) provide, it is argued, a context for the understanding (and later exercise) of practical wisdom.  The Hessian effect — the sense that the law teacher is there simply to train practically-minded mercenaries, see Thomas Bergin, The Law Teacher: A Man Divided Against Himself, 54 Va. L. Rev. 637 (1968) — remains present in legal education, but the definition of the training of lawyers has broadened to encompass such courses as integral to one’s legal education.

Part of this transformation results from the greater employment of legal academics who hold joint degrees in law and other disciplines, many of whom had little experience in practice. Part was a reaction against dogged resistance to “big ideas” about law in mid-twentieth century legal education, and part, I think, is due to a hunger in students for something more from their education than technocratic training. 

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Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech

Scales-red In Weintraub v. Board of Education of the City of New York, No. 07-2376 (2d Cir. Jan. 27, 2010), the Second Circuit, in a 2-1 decision, has delivered a body blow to the First Amendment speech rights of public school teachers.

The case concerns a fifth-grade teacher who was dealing with a disruptive student throwing books at him on multiple occasions. When the school administrator refused to take disciplinary action against the student, the teacher filed a grievance with his union.  The school allegedly responded by retaliating against the teacher and eventually, firing him.  (BTW, all of this happened from 1998-2000, and the Second Circuit decision just came out in 2010; something about justice delayed is justice denied keeps popping into my head.)

The majority decision, written by Judge Walker, recites the holding of Garcetti (U.S. 2006) (the bane of my existence) that public employee speech pursuant to an employee’s official duties receives NO First Amendment protection. In Weintraub, the “speech” being examined was the grievance filed by the teacher with his union.

The Court held that the employee’s grievance was “pursuant to” his official duties because “it was ‘part and parcel of his concerns’ about his ability to ‘properly execute his duties,’ as a public school teacher — namely to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.” 

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Justice Kennedy Goes to the Movies

smith goesThose industrious enough to reach the final paragraphs of the recent opinion of the Court in Citizens United v. Federal Election Commission (2010) might have been surprised to find Justice Kennedy discussing Mr. Smith Goes to Washington (1939).  A Hollywood classic directed by Frank Capra, the film is the fictional story of a handpicked bumpkin Senator played by Jimmy Stewart, who sees the light, dramatically filibusters, and in the end teaches the Congress how to behave.  Justice Kennedy’s argument seems to be that if the campaign-related indictment of Hillary Clinton in the film titled Hillary: The Movie could be suppressed, the same fate could befall a beloved work such as Mr. Smith Goes to Washington.

The two films’ only similarity seems to be that they are indeed films.  One film is fictional, but the other attacks an actual Senator and Presidential candidate.  One is designed to entertain, but the other is designed to influence an election.  And most importantly, one is a work produced by the culture industry designed to make a profit, but the other is a work funded from corporate profits designed to change opinions. 

Are Justice Kennedy and the other members of the Supreme Court majority incredibly unsophisticated in their understanding of popular culture and politics, or is their analogy disingenuous?  Extending the inquiry, might a comparable question be posed regarding the Citizens United opinion as a whole?  The Supreme Court’s majority might be so oblivious as to think that corporations have the full panoply of First Amendment rights and that their financially self-serving broadsides are matters of free speech that enrich democracy.  Then, again, the majority might simply hope it can trick us into believing that.

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